Originalism

"Originalist" redirects here. For the play, see The Originalist.

Scene at the Signing of the Constitution of the United States by Howard Chandler Christy

Originalism is a method of constitutional and statutory interpretation. Originalists assert that legal text should be interpreted based on the original understanding at the time of adoption. Originalists object to the idea of the significant legal evolution being driven by judges in a common law framework and instead favor modifications of laws through the Legislature or through Constitutional amendment.

The term was coined in 1980 and the concept became popular in U.S. conservative legal circles by the 1990s. Originalism nevertheless remains particularly unpopular in many democracies, with the ideology only gaining traction in the West in the United States and, to a lesser extent, Australia. ^[1] David Fontana argues in the Texas Law Review that originalism has more adherents in countries that underwent revolutions, especially those in Latin America and Africa. ^[2] Critics of originalism often turn to the competing concept of the Living Constitution, which asserts that a constitution should be interpreted based on the context of current times. ^{[3] [4]}

"Originalism" can refer to original intent or original meaning. The divisions between the theories relate to what exactly that identifiable original intent or original meaning is: the intentions of the authors or the ratifiers, the original meaning of the text, a combination of the two, or the original meaning of the text but not its expected application. Originalism should not be confused with strict constructionism. ^[5]

History

The idea that judicial review was distinguished from ordinary political process by the application of principles grew to be understood as fundamental to the legitimacy of judicial interpretation. ^[6] Proponents of originalism argue that originalism was the primary method of legal interpretation in America from the time of its founding until the time of the New Deal, when competing theories of interpretation grew in prominence. ^{[7] [8] [9]}

Critics of originalism argue it is a new concept, with Ruth Marcus crediting Robert Bork's 1971 article "Neutral Principles and Some First Amendment Problems" as its first manifestation. ^{[10] [11] [12]} The term "originalism" was coined by liberal critic Paul Brest in 1980. ^[12] It was not until the 1980s, when conservative jurists began to take seats on the Supreme Court, that the debate really began in earnest with the 1990s seeing originalism becoming a broadly endorsed view in the conservative legal movement. ^[12] "Old originalism" focused primarily on "intent", mostly by default. But that line was largely abandoned in the early 1990s; as "new originalism" emerged, most adherents subscribed to "original meaning" originalism, though there are some intentionalists within new originalism.^{[ citation needed ]} The first originalists on the court were Alito and Thomas, and they would not have a powerful bloc until the three Trump appointees joined the court. ^[12]

Originalism has had a profound impact on the law in the United States. Many judges opposed to conservative originalism have adopted some tenets of the philosophy to justify their rulings. For example, Supreme Court Justice Elena Kagan, a frequent critic of conservative originalism, argues that some aspects of the constitution were intentionally broad and vague to allow for future generations to interpret them along with the times. ^[13] Some widely accepted judicial tests can be said to follow an originalist framework.^{[ citation needed ]} For example, to determine if a party has a right to a jury in a Federal civil trial under the Seventh Amendment to the United States Constitution, judges must examine the right to jury trial as it existed in 1791. ^[14] Additionally, the Supreme Court has recently used an originalist framework in many cases involving the Second Amendment to the United States Constitution like New York State Rifle & Pistol Association, Inc. v. Bruen. ^[15]

Debate

Support

Neil Gorsuch argued in 2019 that Originalism constrains judges to act as neutral arbiters by having judges set aside their policy preferences when ruling, and that through this Judicial restraint and opposition to Judicial activism Originalists uphold democracy. ^[16] Gorsuch claims that cases like Dred Scott and Korematsu cannot be defended when examining the Constitution's original meaning. ^[16] Many originalists are proponents of Constitutional colorblindness.^{[ citation needed ]}

Opposition

Calvin Terbeek argues that Originalism's appeal in modern times is rooted in conservative political resistance to the Brown v. Board of Education Supreme Court decision and opposition to some civil rights legislation. ^[17]

Michael Waldman argues that originalism is a new concept, and not one espoused by the founders. ^[10] He also criticizes conservatives as embracing originalism because it was conservative, not embracing conservatism because it was originalist. ^[12]

According to a 2021 paper in the Columbia Law Review, the Founding Fathers did not include a nondelegation doctrine in the Constitution and saw nothing wrong with delegations as a matter of legal theory, contrary to the claims of some originalists. ^[18]

Ruth Marcus wonders why we should keep the original meaning as fixed when the U.S. was in an agrarian economy where black people were enslaved and women treated like chattel. She argues that the Constitution was written with the understanding that it would apply to circumstances not yet forseen, and with language flexible enough to accommodate them. ^[12]

Jamal Greene argues that originalism is remarkably unpopular outside the United States (including Canada, South Africa, India, Israel, and most of Europe), where minimalism or textualism are the recommended responses to judicial activism. ^[19]

Justice William J. Brennan Jr. described originalism as "arrogance cloaked as humility" ^[20] during a 1985 speech at Georgetown University. In this speech, he also stated “It is arrogant to pretend that from our vantage we can gauge accurately the intent of the framers", and that politicians that claim to do so are motivated purely by political reasons, as they “have no familiarity with the historical record."

Forms

Originalism is an umbrella term for interpretative methods that hold to the "fixation thesis", the notion that an utterance's semantic content is fixed at the time it is uttered. ^[21] Two alternative understandings about the sources of meaning have been proposed:

• The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what those who drafted and ratified it intended the meaning to be. This view has become largely depreciated among 21st-century originalists. Alfred Avins and Raoul Berger (author of Government by Judiciary ) were proponents of this view.
• The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text to be. Antonin Scalia was a proponent of this view, as are Clarence Thomas and Amy Coney Barrett. ^[22]

Original intent

Main article: Original intent

The original form of originalism is sometimes called intentionalism, or original intent originalism, and looked for the subjective intent of a law's enactors. One problem with this approach is identifying the relevant "lawmaker" whose intent is sought. For instance, the authors of the U.S. Constitution could be the particular Founding Fathers that drafted it, such as those on the Committee of Detail. Or, since the Constitution purports to originate from the People, one could look to the various state ratifying conventions. The intentionalist methodology involves studying the writings of its authors, or the records of the Philadelphia Convention, or debates in the state legislatures, for clues as to their intent.^{[ original research? ]}

There are two kinds of intent analysis, reflecting two meanings of the word intent. The first, a rule of common law construction during the Founding Era, is functional intent. The second is motivational intent. To understand the difference, one can use the metaphor of an architect who designs a Gothic church with flying buttresses. The functional intent of flying buttresses is to prevent the weight of the roof from spreading the walls and causing a collapse of the building, which can be inferred from examining the design as a whole. The motivational intent might be to create work for his brother-in-law who is a flying buttress subcontractor. Using original intent analysis of the first kind, one might decide that the language of Article III of the U.S. Constitution was to delegate to Congress the power to allocate original and appellate jurisdictions, and not to remove some jurisdiction, involving a constitutional question, from all courts. That would suggest that the decision was wrong in Ex Parte McCardle . ^{[23] [ original research? ]}

Problems with intentionalism

However, intentionalism encounters numerous problems when applied to the Constitution. For example, most of the Founders did not leave detailed discussions of what their intent was in 1787, and, while a few did, there is no reason to think that their views should be dispositive of what the rest thought. Moreover, the discussions of the drafters may have been recorded; however they were not available to the ratifiers in each state. The theory of original intent was challenged in a string of law review articles in the 1980s. ^[24] Specifically, original intent was seen as lacking good answers to three important questions: whether a diverse group such as the framers even had a single intent; if they did, whether it could be determined from two centuries' distance; and, whether the framers themselves would have supported original intent. ^[25]

In response to this, a different strain of originalism, articulated by (among others) Antonin Scalia, ^[26] Robert Bork, ^[27] and Randy Barnett, ^[28] came to the fore. This is dubbed original meaning.

Original meaning

Main article: Original meaning

Justice Oliver Wendell Holmes argued that interpreting what was meant by someone who wrote a law was not trying to "get into his mind" because the issue was "not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used." ^[29] This is the essential precept of modern originalism.^{[ citation needed ][ original research? ]}

The most robust and widely cited form of originalism, original meaning, emphasizes how the text would have been understood by a reasonable person in the historical period during which the constitution was proposed, ratified, and first implemented. For example, economist Thomas Sowell ^[30] notes that phrases like "due process" and "freedom of the press" had a long established meaning in English law, even before they were put into the Constitution of the United States. Applying this form involves studying dictionaries and other writings of the time (for example, Blackstone's Commentaries on the Laws of England ; see "Matters rendered moot by originalism", infra) to establish what particular terms meant. (See Methodology, infra).

Justice Scalia, one of the most forceful modern advocates for originalism^{[ citation needed ]}, defined himself as believing in original meaning:

The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words. ^[31]

Though there is evidence that the Founding Fathers intended the Constitution to be like a statute, this fact does not matter under Scalia's approach. Adherence to original meaning is explicitly divorced from the intent of the Founders; rather, the reasons for adhering to original meaning derive from other justifications, such as the argument that the understanding of the ratifiers (the people of the several States at the time of the adoption of the Constitution) should be controlling, as well as consequentialist arguments about original meaning's positive effect on rule of law.

Perhaps the clearest example illustrating the importance of the difference between original intent and original meaning is the Twenty-seventh Amendment. The Twenty-seventh Amendment was proposed as part of the Bill of Rights in 1791, but failed to be ratified by the required number of states for two centuries, eventually being ratified in 1992. An original intent inquiry might ask what the framers understood the amendment to mean when it was written, though some would argue that it was the intent of the latter-day ratifiers that is important. An original-meaning inquiry would ask what the plain, public meaning of the text was in 1992 when it was eventually ratified.

Semantic originalism

Semantic-originalism is Ronald Dworkin's term for the theory that the original meaning of many statutes implies that those statutes prohibit certain acts widely considered not to be prohibited by the statutes at the time of their passages. This type of originalism contrasts with expectations originalism, which adheres to how the statutes functioned at the times of their passages, without any expectation that they would function in any other particular ways. ^[32]

Justice Antonin Scalia and other originalists often claim that the death penalty is not "cruel and unusual punishment" because at the time of the Eighth Amendment's passage, it was a punishment believed to be neither cruel nor unusual. Dworkin and the semantic-originalists assert, however, that if advances in moral philosophy (presuming that such advances are possible) reveal that the death penalty is in fact "cruel and unusual", then the original meaning of the Eighth Amendment implies that the death penalty is unconstitutional. All the same, Justice Scalia purported to follow semantic originalism, although he conceded that Dworkin does not believe Scalia was true to that calling. ^[33]

Framework originalism

Supreme Court Justice Antonin Scalia (pictured) was a firm believer in originalism.

Framework Originalism is an approach developed by Jack Balkin, a professor of law at Yale Law School. Framework Originalism, or Living Originalism, is a blend of two principal constitutional interpretive methods: originalism and Living Constitution. Balkin holds that there is no inherent contradiction between these two interpretive approaches—when properly understood. Framework Originalists view the Constitution as an "initial framework for governance that sets politics in motion." This "framework" must be built-out or filled-out over time, successive generations, by the various legislative and judicial branches. This process is achieved, primarily, through building political institutions, passing legislation, and creating precedents (both judicial and non-judicial). ^[34] In effect, the process of building out the Constitution on top of the framework of the original meaning is living constitutionalism, the change of and progress of law over time to address particular (current) issues. The authority of the judiciary and of the political branches to engage in constitutional construction comes from their "joint responsiveness to public opinion" over long stretches of time, while operating within the basic framework of the original meaning. Balkin claims that through mechanisms of social influence, both judges and the political branches inevitably come to reflect and respond to changing social mores, norms, customs and (public) opinions.

According to Framework originalism, interpreters should adhere to the original meaning of the Constitution, but are not necessarily required to follow the original expected application (although they may use it to create doctrines and decide cases). For example, states should extend the equal protection of the laws to all peoples, in cases where it would not originally or normally have applied. Contemporary interpreters are not bound by how people in 1868 would have applied these words and meanings to issues such as racial segregation or (sexual) discrimination, largely due to the fact the Fourteenth Amendment is concerned with such issues (as well as the fact that the Fourteenth Amendment was not proposed or ratified by the founders). When the Constitution uses or applies principles or standards, like "equal protection" or "unreasonable searches and seizures," further construction is usually required, by either the judiciary, the executive, or the legislative branch. Therefore, Balkin claims, (pure, unadulterated) originalism is not sufficient to decide a wide range of cases or controversies. Judges, he posits, will have to "engage in considerable constitutional construction as well as the elaboration and application of previous constructions." For example, originalism (in and of itself), is not sufficient to constrain judicial behavior. Constraint itself does not just come from doctrine or canons, but also from institutional, political, and cultural sources. These constraints include: multi-member or panel courts (where the balance of power lies with moderate judges); the screening of judges through the federal judicial appointment process; social and cultural influences on the judiciary (which keep judges attuned and attentive to popular opinions and the political will of the people); and prevailing professional legal culture and professional conceptions of the role of the judiciary (which produce social norms or mores). These constraints ensure that judges act as impartial arbiters of the law and to try to behave in a principled manner, as it applies to decision making.

Professor Nelson Lund of George Mason University Law School has criticized Balkin's living originalism theory. ^[35] Specifically, Lund argues that living originalism could be used to read the 26th Amendment to the United States Constitution in such a way that it allows for an 18-year-old U.S. President (with the argument being that the 26th Amendment implicitly amends the 35-year age requirement for the U.S. presidency as well as all other age requirements for federal offices to make all of them 18 years). ^[35] Also, Lund argues that if living originalism could be used to justify a constitutional right to same-sex marriage, then "it would be child's play to construct the Fourteenth Amendment into a shield for polygamy, prostitution, incest (at least among adults), polyamorous marriages, and a variety of other unorthodox sexual relationships." ^[35] Finally, Lund argues that "[w]hatever one's reasons for accepting Balkin's proposal to marry originalism and living constitutionalism, doing so leaves originalism itself in a condition akin to the legal death that married women experienced under the old rules of coverture." ^[35]

Related positions

Strict constructionism

According to University of Toledo law professor Lee J. Strang, a conservative advocate for originalism, ^[36] early versions of originalism ("not the sophisticated, more-fully explicated originalism of today") were used at the Founding up until the 1930s; Strang notes that his claims are "contested in the literature" though. ^[37]

Bret Boyce described the origins of the term originalist as follows: The term "originalism" has been most commonly used since the middle 1980s, and was apparently coined by Paul Brest in The Misconceived Quest for the Original Understanding. ^[38] It is often asserted that originalism is synonymous with strict constructionism . ^{[39] [40] [41] [42]}

Both theories are associated with textualist and formalist schools of thought; however, there are pronounced differences between them. Scalia differentiated the two by pointing out that, unlike an originalist, a strict constructionist would not acknowledge that he uses a cane means he walks with a cane (because, strictly speaking, this is not what he uses a cane means). ^[43] Scalia averred that he was "not a strict constructionist, and no-one ought to be"; he goes further, calling strict constructionism "a degraded form of textualism that brings the whole philosophy into disrepute". ^[44]

Legal scholar Randy Barnett asserts that originalism is a theory of interpretation, not construction. ^[45] However, this distinction between "interpretation" and "construction" is controversial and is rejected by many nonoriginalists as artificial. As Scalia said, "the Constitution, or any text, should be interpreted [n]either strictly [n]or sloppily; it should be interpreted reasonably";^{[ citation needed ]} once originalism has told a Judge what the provision of the Constitution means, they are bound by that meaning—however the business of Judging is not simply to know what the text means (interpretation), but to take the law's necessarily general provisions and apply them to the specifics of a given case or controversy (construction). In many cases, the meaning might be so specific that no discretion is permissible, but in many cases, it is still before the Judge to say what a reasonable interpretation might be. A judge could, therefore, be both an originalist and a strict constructionist—but she is not one by virtue of being the other.

Declarationism

Declarationism is a legal philosophy that incorporates the United States Declaration of Independence into the body of case law on level with the United States Constitution. It holds that the Declaration is a natural law document and so that natural law has a place within American jurisprudence. ^[46] Its main proponents include Harry V. Jaffa and other members of the Claremont Institute. Some proponents claim that Supreme Court Justice Clarence Thomas is a follower of this school of thought; however, Thomas is more widely considered a member of the strict constructionist school.

In Cotting v. Godard, 183 U.S. 79 (1901), the United States Supreme Court stated:

The first official action of this nation declared the foundation of government in these words: "We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness." While such declaration of principles may not have the force of organic law, or be made the basis of judicial decision as to the limits of right and duty, and while in all cases reference must be had to the organic law of the nation for such limits, yet the latter is but the body and the letter of which the former is the thought and the spirit, and it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence. No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which is the foundation of free government.

Proponents claim that the concept is derived from the philosophical structure contained in the Declaration of Independence and assertion that it was the Declaration that revealed the United States as a new emergent nation, the Constitution creating only the federal government. According to this view, the authority to create the Constitution derives from the prior act of nation-creation accomplished by the Declaration. The Declaration declares that the people have a right to alter or abolish any government once it becomes destructive of their natural rights. The turn away from the Articles of Confederation with the ratification of the Constitution was an action of this sort and so the Constitution's authority exists within the legal framework established by the Declaration. The Constitution cannot, then, be interpreted as though it were the foundation of constitutional law, in the absence of principles derived from the Declaration.

Though philosophically conservative, Declarationists such as Jaffa have been outspoken critics of originalist jurists including Robert Bork, Antonin Scalia, and William Rehnquist, likening them to legal positivists. Bork and legal scholar Lino Graglia have, in turn, critiqued the Declarationist position, retorting that it is single-mindedly obsessive over the Dred Scott decision and resembles a theology rather than a legal doctrine.

Methodology

In "The Original Meaning of the Recess Appointments Clause", Michael B. Rappaport described the methodology associated with the "original meaning" form of originalism as follows:^{[ citation needed ]}

• "The task is to determine the original meaning of the language ... that is, to understand how knowledgeable individuals would have understood this language ... when it was drafted and ratified. Interpreters at the time would have examined various factors, including text, purpose, structure, and history."
• "The most important factor is the text of the Clause. The modern interpreter should read the language in accord with the meaning it would have had in the late 1780s. Permissible meanings from that time include the ordinary meanings as well as more technical legal meanings words may have had."
• "If the language has more than one interpretation, then one would look to purpose, structure, and history to help to clarify the ambiguity. Purpose, structure, and history provide evidence for determining which meaning of the language the authors would have intended."
  • "The purpose of a Clause involves the objectives or goals that the authors would have sought to accomplish in enacting it. One common and permissible way to discern the purpose is to look to the evident or obvious purpose of a provision. Yet, purpose arguments can be dangerous, because it is easy for interpreters to focus on one purpose to the exclusion of other possible purposes without any strong arguments for doing so."
  • "Historical evidence can reveal the values that were widely held by the Framers' generation and that presumably informed their purposes when enacting constitutional provisions. History can also reveal their practices, which when widely accepted would be evidence of their values."
  • "The structure of the document can also help to determine the purposes of the Framers. The decision to enact one constitutional clause may reveal the values of the Framers and thereby help us understand the purposes underlying a second constitutional clause."
• "One additional source of evidence about the meaning of constitutional language is early constitutional interpretations by government officials or prominent commentators. ... Such interpretations may provide evidence of the original meaning of the provisions, because early interpreters would have had better knowledge of contemporary word meanings, societal values, and interpretive techniques. Of course, early interpreters may also have had political and other incentives to misconstrue the document that should be considered." (Id. at 5–7).

Discussion

Philosophical underpinnings

Originalism, in all its various forms, is predicated on a specific view of what the Constitution is, a view articulated by Chief Justice John Marshall in Marbury v. Madison :^{[ citation needed ]}

[T]he constitution organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained?

Originalism assumes that Marbury is correct: the Constitution is the operating charter granted to government by the people, as per the preamble to the United States Constitution, and its written nature introduces a certain discipline into its interpretation. Originalism further assumes that the need for such a written charter was derived from the perception, on the part of the Framers, of the abuses of power under the (unwritten) British Constitution, under which the Constitution was essentially whatever Parliament decided it should be. In writing out a Constitution which explicitly granted the government certain authorities, and withheld from it others, and in which power was balanced between multiple agencies (the presidency, two chambers of Congress and the Supreme Court at the national level, and state governments of the United States with similar branches), the intention of the Framers was to restrain government, originalists argue, and the value of such a document is nullified if that document's meaning is not fixed. As one author stated, "If the constitution can mean anything, then the constitution is reduced to meaninglessness." ^[47]

Function of constitutional jurisprudence

Dissenting in Romer v. Evans , Scalia wrote:

Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected.

This statement summarizes the role for the court envisioned by originalists, that is, that the Court parses what the general law and constitution say of a particular case or controversy, and when questions arise as to the meaning of a given constitutional provision, that provision should be given the meaning it was understood to mean when ratified. Reviewing Steven Douglas Smith's book Law's Quandary, Scalia applied this formulation to some controversial topics routinely brought before the Court:

It troubles Smith, but does not at all trouble me—in fact, it pleases me—that giving the words of the Constitution their normal meaning would "expel from the domain of legal issues ... most of the constitutional disputes that capture our attention", such as "Can a macho military educational institution dedicated to what is euphemistically called the 'adversative' method admit only men? Is there a right to abortion? Or to the assistance of a physician in ending one's life?" If we should read English as English, Smith bemoans, "these questions would seemingly all have received the same answer: 'No law on that one.'" That is precisely the answer they should have received: The federal Constitution says nothing on these subjects, which are therefore left to be governed by state law. ^[48]

In Marbury, Chief Justice John Marshall established that the Supreme Court could invalidate laws which violated the Constitution (that is, judicial review), which helped establish the Supreme Court as having its own distinct sphere of influence within the federal government. However, this power was itself balanced with the requirement that the Court could only invalidate legislation if it was unconstitutional. Originalists argue that the modern court no longer follows this requirement. They argue that, since U.S. v. Darby , the Court has increasingly taken to making rulings ^[49] in which the Court has determined not what the Constitution says, but rather, the Court has sought to determine what is "morally correct"^{[ citation needed ]} at this point in the nation's history, in terms of "the evolving standards of decency"^{[ citation needed ]} (and considering "the context of international jurisprudence"^{[ citation needed ]}), and then justified that determination through a "creative reading"^{[ citation needed ]} of the text. This latter approach is frequently termed "the Living constitution"; Scalia inveighed that "the worst thing about the living constitution is that it will destroy the constitution". ^[50]

Matters rendered moot by originalism

Originalists are sharply critical of the use of the evolving standards of decency (a term which first appeared in Trop v. Dulles ) and of reference to the opinions of courts in foreign countries (excepting treaties to which the United States is a signatory, per Article II, Section 2, Clause 2 of the United States Constitution) in Constitutional interpretation.^{[ citation needed ]}

In an originalist interpretation, if the meaning of the Constitution is static, then modern sensibilities are irrelevant and should not form any part of constitutional jurisprudence. Additionally, foreign laws or morals (if they had no impact on the original drafting) are completely irrelevant. The Constitution is thus fixed and has amendment procedures to change. The exception to the use of foreign law is the English common law, which originalists regard as setting the philosophical stage for the US Constitution and the American common and civil law. Hence, an originalist might cite Blackstone's Commentaries to establish the meaning of the term due process as it would have been understood at the time of ratification.

Many originalists have serious disagreements with substantive due process. Justices Scalia and Thomas have called the doctrine an “oxymoron". These originalists view the due process clause as solely referring to procedural due process. To justify the incorporation or the discovery of unenumerated rights, Justice Gorsuch and Justice Thomas would prefer that the court rely on the Privileges and Immunities Clause rather than substantial due process. ^[51] Not all originalist judges agree with the criticism of substantive due process.^{[ citation needed ]}

See also

• Constitution in Exile
• Democratic backsliding in the United States
• Unconstitutional constitutional amendment

References

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4. Vloet, Katie (September 22, 2015). "Two Views of the Constitution: Originalism vs. Non-Originalism". University of Michigan Law.
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6. Schultz, David Andrew (2009). Encyclopedia of the United States Constitution. Facts on File. p. 164. ISBN   9781438126777.
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10. Waldman, Michael (2023). The supermajority: how the Supreme Court divided America (First Simon & Schuster hardcover ed.). New York London ; Toronto ; Sydney ; New Delhi: Simon & Schuster. ISBN   978-1-6680-0606-1.
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17. Terbeek, Calvin (2021). ""Clocks Must Always Be Turned Back": Brown v. Board of Education and the Racial Origins of Constitutional Originalism". American Political Science Review. 115 (3): 821–834. doi:10.1017/S0003055421000095. ISSN   0003-0554. S2CID   233706358.
18. Mortenson, Julian Davis; Bagley, Nicholas (2021). "Delegation at the Founding". Columbia Law Review. 121 (2).
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21. L. Solum (November 25, 2008)[April 16, 2008]."Semantic Originalism", Illinois Public Law Research Paper No. 07-24.
22. Barrett, Amy Coney (July 2017). "Originalism and Stare Decisis". Notre Dame Law Review. 92 (5).
23. Ex Parte McCardle, 74 U.S. 506 (Wall.) (1868)
24. See, for example, Powell, "The Original Understanding of Original Intent", 98 Harv. L. Rev. 885 (1985)
25. See also, W. Serwetman, Originalism At Work in Lopez: An Examination of the Recent Trend in Commerce Clause Jurisprudence
26. See "A Matter of Interpretation", supra; see also, A. Scalia, Originalism: the Lesser Evil Archived February 21, 2006, at the Wayback Machine , 57 U. Cin. L. Rev. 849.
27. See R. Bork, The tempting of America: The political seduction of the law.
28. See R. Barnett, An Originalism for non-Originalists, 45 Loy. L. Rev. 611; R. Barnett, Restoring the Lost Constitution.
29. O. W. Holmes, Collected Legal Papers, ISBN   978-0-8446-1241-6, p. 204
30. "Thomas Sowell Articles – Political Columnist & Commentator". townhall.com. Retrieved March 19, 2016.
31. See A. Scalia, A Theory of Constitution Interpretation, speech at Catholic University of America, 10/18/96.
32. Barnett, Randy. Restoring the Lost Constitution , p. 95 (Princeton U. Press 2013).
33. Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law: Federal Courts and the Law , p. 144 (Princeton University Press 1998).
34. Balkin, Jack (February 16, 2009). "Framework Originalism and The Living Constitution, Public Law & Legal Theory Research Paper Series" Yale Law School. Retrieved July 27, 2013.
35. Lund, Nelson. (February 27, 2015) "Living Originalism: The Magical Mystery Tour" Texas A&M Law Review, Vol. 3, No. 1, pp. 31–43, 2015. George Mason Law & Economics Research Paper No. 15-07.
36. "Originalist Scholarship and Conservative Politics - New Rambler Review". newramblerreview.com. Retrieved May 26, 2021.
37. Strang, Lee (2019), "A Brief History of Originalism in American Constitutional Interpretation", Originalism's Promise: A Natural Law Account of the American Constitution, Cambridge University Press, pp. 9–42, ISBN   978-1-108-47563-1
38. B. Boyce, "Originalism and the Fourteenth Amendment", 2009. 33 Wake Forest L. Rev. 909.
39. "I am not a strict constructionist, and no one ought to be." The University of Chicago, The Law School Blog. October 7, 2005
40. "Can Bush Deliver a Conservative Supreme Court?". Archived from the original on December 19, 2005. Retrieved December 16, 2005.
41. "Mini-Guide to Future Supreme Court Appointments in the Bush Administration". JURIST: the legal education network (Blog post). Archived from the original on December 16, 2005. Retrieved December 16, 2005.
42. Gerken, Wil; Hendler, Nathan; Floyd, Doug; Banks, John (April 10, 2000). "News & Opinion: Who Would Bush Appoint to the Supreme Court?". The Boston Phoenix . Archived from the original on March 31, 2016. Retrieved March 19, 2016– via The Weekly Wire.
43. See Smith v. United States, 508 U.S. 223 (1993)
44. A. Scalia, A Matter of Interpretation, ISBN   978-0-691-00400-6, Amy Guttman ed. 1997, at p. 23.
45. Barnett, The Original Meaning of the Commerce Clause Archived October 19, 2020, at the Wayback Machine
46. Kersch, Ken I. "Beyond originalism: Conservative declarationism and constitutional redemption." Md. L. Rev. 71 (2011): 229.
47. "The New Guard". 1973. Retrieved March 19, 2016.
48. A. Scalia, Law & Language ; First Things, November 2005
49. See, for example, Griswold v. Connecticut , 381 U.S. 479 (1965); Roe v. Wade , 410 U.S. 113 (1973); Morrison v. Olson , 487 U.S. 654 (1988); Lawrence v. Texas , 539 U.S. 558 (2003); Roper v. Simmons , Docket No. 03-633 (2005); Kelo v. City of New London, Docket No. 04-108 (2005).
50. See Scalia, Constitutional Interpretation, speech at Woodrow Wilson International Center 3/14/05
51. Pilon, Roger (March 6, 2019). "Blog: Senator Hawley's Apostasy and the Substantive Due Process Problem". Cato Institute. Retrieved November 26, 2023.

References

• Barnett, Randy E. (2004). Restoring the Lost Constitution: The Presumption of Liberty. Princeton, New Jersey: Princeton University Press. ISBN   978-0691115856.
• Calabresi, Steven G., ed. (2007). Originalism: A Quarter-Century of Debate. Washington, DC: Regnery Pub. Inc. ISBN   978-1-59698-050-1.
• Chemerinsky, Erwin (2022). Worse Than Nothing: The Dangerous Fallacy of Originalism. New Haven, Connecticut: Yale University Press. ISBN   978-0300259902. Review
• Kesavan, Vasan and Paulsen, Michael Stokes. "The Interpretive Force of the Constitution's Secret Drafting History", 91 Georgetown Law Journal 1113 (2003).
• Lawson, Gary S. "On Reading Recipes — and Constitutions", 85 Georgetown Law Journal 1823 (1997).
• Rakove, Jack N. (1996). Original Meanings: Politics and Ideas in the Making of the Constitution. New York: Alfred A. Knopf. ISBN   0-394-57858-9.
• Whittington, Keith E. (1999). Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review. Lawrence, Kansas: University Press of Kansas. ISBN   0-7006-0969-5.

Further reading

• Joseph J. Ellis (2018). American Dialogue: The Founders and Us. Knopf. ISBN   978-0385353427.
• Why Originalism Is So Popular (January 13, 2011) by Eric A. Posner, The New Republic
• Trumping Precedent with Original Meaning: Not as Radical as It Sounds (4 May 2005) by Randy Barnett

External links

• The Originalism Blog, Center for the Study of Constitutional Originalism at the University of San Diego School of Law
• Justice Scalia lecture at Woodrow Wilson Center, comparing and contrasting originalism from the "living constitution" approach (2005) via Center for Individual Freedom
• Legal Theory Lexicon entry on Originalism^{[ better source needed ]}
• "Original Intent and The Free Exercise of Religion", by Joseph A. Zavaletta Jr., Esq on earlyamerica.com^{[ better source needed ]}
• "Constitutional Issues of Taxation" on originalintent.org^{[ better source needed ]}
• The Founders Constitution Founding-era materials
• American Patriot Party Founding-era Principles^{[ better source needed ]}
• "Judicial Activism Reconsidered" on Thomas Sowell's blog^{[ better source needed ]}
• Bad originalism (May 2005) on Jack Balkin's blog^{[ better source needed ]}
• "Scalia Blowing Smoke Again" (October 2004) on Jack Balkin's blog^{[ better source needed ]}
• Balkin on "Bad Originalism" by Ed Brayton on Humanbeans Archived September 22, 2018, at the Wayback Machine ^{[ better source needed ]}